State v. Mears

State v. Mears (98-252); 170 Vt. 336; 749 A.2d 600

[Filed 28-Jan-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter  of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of 
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 98-252


State of Vermont	                         Supreme Court

	                                         On Appeal from
     v.		                                 District Court of Vermont,
	                                         Unit No. 1, Orange Circuit

Jason Mears	                                 September Term, 1999


Shireen Avis Fisher, J.

       James D. McKnight, Orange County State's Attorney, and Pamela Hall
  Johnson, Deputy State's Attorney, Specially Assigned, Chelsea, for
  Plaintiff-Appellee.

       Robert Appel, Defender General, and Anna Saxman, Appellate Attorney,
  Montpelier, for Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.   Defendant Jason Mears appeals his Orange District
  Court conviction  for attempted murder in the first degree.  Defendant
  argues that (1) the trial court erroneously  admitted statements he made to
  police, (2) he did not waive his rights to silence and to counsel 
  knowingly, intelligently, and voluntarily, and (3) the court should have
  granted his motion for a  mistrial because a prosecution witness's
  testimony prejudiced defendant.  We affirm.
					
                                  I. Facts

       The relevant facts are not in dispute.  Briefly stated, on October 7,
  1996, defendant, armed  with a revolver, entered neighbor Yvonne Campbell's
  Braintree home and brutally assaulted her, 

 

  leaving her for dead.  He initially pled guilty to attempted second degree
  murder, but then withdrew  his plea.  At trial, defendant did not contest
  that he committed the attack, but presented a  diminished-capacity defense,
  claiming that he intended only to steal from the Campbells but raged  out
  of control when his plan went awry.  Defendant was convicted of attempted
  first-degree murder  in March 1998.

       Because defendant's first claim of error relates to statements made by
  defendant after he  was taken into custody, we briefly recount the
  circumstances.  At approximately 9:30 a.m. on  October 7, 1996, Ms. Campell
  called 9-1-1 and, speaking in a whispered and panicked voice, told  the
  dispatcher that defendant had stabbed her.  A half-hour later, an emergency
  medical team  arrived at the scene of the attack.  Although bleeding
  profusely from gaping wounds in her head,  neck, and leg,  Ms. Campbell was
  conscious and again identified defendant as her attacker.  

       Shortly after 1:00 p.m. on the same day, police took the
  then-seventeen-year-old defendant  to the Vermont State Police barracks in
  Bethel.  Defendant was reluctant to call his father, but did  so at the
  insistence of Officer Terry Lewis. Defendant's father, Bruce Mears, arrived
  at the barracks  at approximately 3:30 p.m.  During the two hours defendant
  was at the barracks without his father,  he was not questioned.  He was
  allowed from time to time to walk outside and smoke.  Upon his  arrival at
  the barracks, Mr. Mears was informed by Officer Lewis that his son was a
  suspect in a  stabbing at the Campbell residence, that the police needed to
  interview defendant, and that Mr.  Mears could talk privately with his son
  in one of the interview rooms and decide whether they  wanted to talk to
  the police.  

       Mr. Mears and defendant went into the private room and, after an
  unspecified period of  time, Mr. Mears emerged from the room and told
  Officer Lewis: "We'll talk to you."  Officer Lewis  responded that
  questioning would not begin until Detective Gloria Danforth returned to the 
  barracks 

 

  because she was to conduct the interview.  Detective Danforth, who had
  talked extensively with  Ms. Campbell when the victim called 9-1-1 to
  report the attack, was at the Mears residence  conducting a search pursuant
  to a valid warrant.  Detective Danforth's arrival was delayed about  two
  hours, during which time defendant, Mr. Mears, and defendant's mother,
  Naomi Mears, who  had arrived after Mr. Mears, went in and out of a private
  interview room.

       At approximately 5:30 p.m., Detective Danforth arrived at the
  barracks, at which time  defendant and his parents were outside smoking. 
  Detective Danforth told Mr. Mears, out of  defendant's presence, that she
  wanted to question his son but that, because defendant was only  seventeen
  years old, she needed parental permission.  Detective Danforth ensured that
  Mr. Mears  understood that he did not have to give such permission, but Mr.
  Mears responded that he felt that it  was very important to prove his son's
  innocence, that he and defendant had discussed at great length  the kinds
  of questions that would be asked, and that he had no problem with the
  interview.   Following this conversation, Detective Danforth and Mr. Mears
  rejoined defendant and Mrs.  Mears, where she informed them that there was
  a search warrant being served at their residence.   Mrs. Mears went home to
  be present during the search.

       Detective Danforth met with Mr. Mears and defendant in a barracks
  interview room, where  she advised both of them of all Miranda warnings,
  ascertained that they understood their rights, and  recorded their
  responses on a written form.  She then stated that she was legally
  obligated to leave  the room to give Mr. Mears and defendant a private
  opportunity to discuss whether they wanted to  sign a Miranda waiver and
  agree to the interview.  As Detective Danforth got up to leave the room, 
  Mr. Mears told her that it was not necessary for her to leave and indicated
  that they wished to waive  the rights and speak with her.  Detective
  Danforth remained in the room, and both Mr. Mears and  defendant signed the
  waiver.

 

       Detective Danforth, Mr. Mears, and defendant engaged in a three-way
  conversation in  which defendant and Mr. Mears expressed hatred for the
  Campbells, especially Ms. Campbell,  whom they suspected had reported them
  for violating local ordinances.  Defendant then stated that  he felt that
  the police were always picking on him, as he had previously been questioned
  by  Randolph police for unrelated minor violations.  Defendant denied ever
  being at the Campbell  residence or meeting Ms. Campbell and shrugged his
  shoulders when Detective Danforth asked  him why Ms. Campbell would have
  identified him as her attacker if he had never been there.

       When Detective Danforth questioned defendant about blood found on a
  firearm seized from  the Mears home, he started quivering, hung his head,
  and stated that he wanted to tell her the whole  story.  Detective Danforth
  asked defendant if she could tape record his statement, but defendant 
  requested that she write his statement instead.  At this point, Mr. Mears
  intervened, stating that he  did not want Detective Danforth to ask
  defendant any more questions.  Defendant and his father  then began
  shouting at one another about hiring a lawyer for defendant, and defendant
  berated  himself several times.  The exchange between defendant and Mr.
  Mears escalated in tension, and  Detective Danforth attempted to diffuse
  the situation, asking defendant what she could do for him.   Defendant
  responded by requesting Detective Danforth give him her gun and he would
  shoot  himself.  Defendant continued to talk of killing himself and was
  eventually taken to a holding cell.   Detective Danforth learned that the
  crime scene investigators had not located defendant's clothing  or the
  knife used in the attack, and that the police were planning to secure the
  Mears home until  morning so they could search the exterior in daylight. 
  Detective Danforth asked Mr. Mears if he  would ask defendant where these
  items were so that the Mears family could return to their home  that night. 
  Mr. Mears spoke privately with defendant, then told Detective Danforth that
  defendant  did not want to talk to her and that she would never find the
  items because defendant had thrown  them in a brook.

 

       At trial, a jury found defendant guilty of attempted first-degree
  murder, and the court  sentenced him to thirty-five years to life
  imprisonment.  Defendant appeals, arguing that: (1) the   court erroneously
  admitted statements he made to Detective Danforth before Mr. Mears
  terminated  the interview at the Bethel Barracks; (2) he did not waive his
  rights to silence and to counsel  knowingly, intelligently, and
  voluntarily; and (3) the court should have granted his motion for a 
  mistrial because a prosecution witness's testimony prejudiced defendant.

                               II.  Discussion

                   A.  Admission of Defendant's Statements

       In response to defendant's motion to suppress all statements he made
  to Detective Danforth,  the court suppressed statements made after Mr.
  Mears terminated the interrogation "including, but  not limited to those
  prompted by question about the defendant's well[-]being or about where he
  hid  evidence."  However, the court ruled that all statements made prior to
  that termination were  voluntary and admissible.  Defendant claims that the
  court erroneously admitted these statements in  violation of our decision
  in In re E.T.C., 141 Vt. 375, 499 A.2d 937 (1982).

       In E.T.C., we held that, for a waiver of a juvenile's rights against
  self-incrimination and to  counsel under Chapter I, Article 10 of the
  Vermont Constitution to be voluntary and intelligent, the  following
  criteria must be met:

     (1) he must be given the opportunity to consult with an adult; (2) that 
     adult must be one who is not only genuinely interested in the welfare 
     of the juvenile but completely independent from and disassociated 
     with the prosecution, e.g., a parent, legal guardian, or attorney 
     representing the juvenile; and (3) the independent interested adult 
     must be informed and be aware of the rights guaranteed to the 
     juvenile.

  Id. at 379, 449 A.2d  at 940.  Defendant argues that the court's admission
  of defendant's statements 

 

  to Detective Danforth was error because (1) there was no "meaningful
  consultation" between  defendant and Mr. Mears, id., and (2) Mr. Mears
  could not waive defendant's rights for him.  

       The first argument fails because Detective Danforth provided the
  opportunity for Mr. Mears  to meet with defendant "in the absence of police
  pressures."  Id. at 380, 449 A.2d  at 940.  This  meets E.T.C.'s requirement
  that "[a] private consultation should be provided."  Id.  Moreover, Mr. 
  Mears - defendant's father - is an adult who is "genuinely interested in
  the welfare of the juvenile  but completely independent from and
  disassociated with the prosecution."  Id. at 379, 449 A.2d  at  940.  The
  opportunity to meet with an "independent, impartial, responsible,
  interested adult[,]" id.  at 380, 449 A.2d  at 940, outside the atmosphere
  of the interrogation room satisfies E.T.C.'s  "meaningful consultation"
  requirement. (FN1)  Id. at 479, 449 A.2d  at 940.  That opportunity was 
  provided here, and defendant's failure to take advantage of it does not
  render Detective Danforth's  subsequent interrogation violative of E.T.C.  

       Defendant's second argument - that Mr. Mears could not waive
  defendant's rights for him - was not preserved at trial.  Thus, we review
  this argument only for plain error.  See V.R.Cr.P. 52(b)  ("Plain errors or
  defects affecting substantial rights may be noticed although they were not
  brought  to the attention of the court.").  We stated the relevant standard
  in State v. Pelican:

     Plain error exists 'only in exceptional circumstances where a failure
     to recognize  error would result in a miscarriage of justice, or where
     there is glaring error so grave  and serious that it strikes at the very
     heart of the defendant's constitutional rights.'  Plain error doctrine
     requires 'an appellate court to find that the claimed error not  only
     seriously affected 'substantial rights,' but that it had an unfair
	
 

     prejudicial impact on the jury's deliberations.'  Prejudice must exist 
     to demonstrate that error undermined fairness and contributed to a 
     miscarriage of justice.

160 Vt. 536, 538-39, 632 A.2d 24, 26 (1993) (citations omitted).


       Defendant argues that the admitted statements were prejudicial because
  they showed that  defendant hated Ms. Campbell and provided a motive for
  the attack, thereby rebutting his  "primitive rage reaction" defense. 
  Nevertheless, the State presented overwhelming evidence  demonstrating
  defendant's hatred for the victim beyond the contested statements. 
  Included in this  evidence was Ms. Campbell's testimony that during the
  vicious attack, defendant repeatedly told  her that he hated her. 
  Detective Danforth also testified that, when Ms. Campbell recounted the 
  attack in her 9-1-1 call, she reported defendant's repeated statements of
  hatred towards her.  Yet  another prosecution witness, Dr. Janice Peyser,
  testified that defendant told her that he was angry  with Ms. Campbell and
  seemed to hold a grudge against her because her cat had scratched his car.

       This testimony provided an adequate foundation for the jury to weigh
  the prosecution's  contention that this was a planned or deliberated
  assault motivated by defendant's hatred for Ms.  Campbell, against
  defendant's primitive-rage-reaction defense.  Thus, defendant has failed to 
  demonstrate that the court's admission of his statements to Detective
  Danforth was plain error that  "not only seriously affected 'substantial
  rights,'" but also "undermined fairness and contributed to a  miscarriage
  of justice."  Pelican, 160 Vt. at 539, 632 A.2d  at 24.  (FN2)

 
   
                           B.  Defendant's Waiver

       Defendant next argues that his waiver of his right to silence and to
  counsel rights was not  knowing, intelligent, or voluntary.  Specifically,
  defendant argues that the court did not conduct a  "probing inquiry" to
  determine whether defendant knowingly and intelligently waived his rights,
  as  is required to protect the rights of persons with diminished mental
  capacity or lower intelligence.   State v. Cleary, 161 Vt. 403, 413, 641 A.2d 102, 108 (1994).  

       Again, however, defendant did not raise these issues at trial; thus,
  we review only for plain  error.  See V.R.Cr.P. 52 (b).  Defendant did not
  put the court on notice that he had a serious mental  impairment that
  interfered with his ability to knowingly and intelligently waive his
  rights.  The  record shows that defendant made only limited references to
  his mental impairment with regard to  waiver, despite the fact that he put
  on substantial evidence of his diminished capacity to control his  rage in
  the attack, including the testimony of an expert on defendant's stunted
  frontal lobe  development.  Defense counsel never argued that defendant
  could not make a knowing,  intelligently, and voluntarily waiver of his
  rights.

       Although the issue was not raised below, the court entered substantial
  findings on  defendant's capacity to waive his rights:

     Officer Danforth took Bruce and Jason into the interrogation room 
     where she read the Miranda rights and Public Defender Forms.  
     After each question, she received a positive response from each 
     Mears and noted each on the form.
     . . . 
     When advising them that they could stop the questioning at any 
     time, she read the passage twice and each acknowledged that they 
     understood, and the acknowledgment was recorded.
     . . .
     The Miranda and Public Defender rights were properly read and 
     explained to both Mears.  Both understood Jason's rights and Jason, 
     with the advice and guidance of his father and his approval, 
     voluntarily waived those rights.


 

     . . .  
     Jason, though technically a minor, was less than a year away from 
     majority.  He had been questioned by police on at least two other 
     occasions, understood his criminal rights and indeed, without advice, 
     exercised his right against a warrantless search just hours 
     before. (FN3)  He had already spent almost two hours discussing his 
     predicament with his father.  His waiver was voluntary, as were the 
     statements he made to Detective Danforth up until his father invoked 
     his right to have questioning cease.

       Thus, the court inquired and then found that defendant was capable of
  waiving his rights.   Moreover, the court personally addressed defendant to
  ascertain his reasons for changing his plea to  not guilty and to ensure
  that he understood the consequences of his withdrawal.  In response to the 
  court's inquiry of why defendant was changing his plea, defendant answered
  that he had not  completely understood his original plea and had felt
  pressured into entering it.  As the court  questioned him further,
  defendant indicated a similar degree of understanding sufficient to
  establish  a knowing, intelligent, and voluntary waiver.  If there was any
  error here, it certainly did not rise to  the level of plain error.  See
  State v. Forant, 168 Vt. 217, 220, 719 A.2d 399, 401 (1998) ("Plain  error
  exists only in extraordinary situations where it is 'obvious and strikes at
  the heart of  defendant's constitutional rights or results in a miscarriage
  of justice.'") (quoting State v. Streich,  163 Vt. 331, 353, 658 A.2d 38,
  53 (1995).
 
                  C.  Denial of Defendant's Mistrial Motion

       Finally, defendant argues that the court erred in denying his motion
  for a mistrial following  Detective Danforth's testimony that she believed
  that some of defendant's statements from the  October 7 Bethel barracks
  interview had been suppressed.  As discussed previously, the court 

 

  allowed defendant's statements prior to Mr. Mears' invocation of
  defendant's right to silence, but  suppressed all statements after the
  father's invocation.  At trial, however, the following colloquy  between
  Detective Danforth and defense counsel took place during cross-examination:
		
          Defense Counsel: [Defendant] continued to tell you that he 
     wanted to kill himself by using a gun to his head, right?
			
	  Detective Danforth: That's correct.
			
	  Q: And this is during the time period when you are trying to 
     interview this person, right?  
			
	  A: Yes.
			
	  Q: And once you had confronted him with the evidence that 
     you knew that you had he became more upset about it, right?
			
	  A: Yes, he did.
		
	  Q: He kept telling you that he just wanted to kill himself?
			
	  A: I believe those statements have been suppressed.


       Defense counsel objected to Detective Danforth's testimony that
  certain statements had  been suppressed.  At a bench conference, defendant
  moved for a mistrial on the grounds that the  testimony revealed to the
  jury that statements had been suppressed and indicated that defendant was 
  hiding information from their consideration.  The court denied the mistrial
  motion, but gave this  curative instruction - which met with defendant's
  approval - to the jury:

          The last statement that the officer made should be 
     disregarded.
	  Let me give you a little explanation about suppression, so 
     that you are not left with the impression that we are withholding 
     anything from you that you should be considering.
	  I have previously ruled that when Mr. Mears, acting as 
     guardian for Jason, told Officer Danforth that Jason would no longer 
     talk to her, a statement that Jason made in the brief period of time 
     that 
		
 

     they were all together thereafter was not to [be admitted as] evidence 
     in the trial.
          Now, Officer Danforth thought that the question Mr. Griffin 
     asked referred to that statement.  And that was not Mr. Griffin's 
     intention and he will ask another question.
	  You are instructed to disregard both the question that Mr. 
     Griffin asked and the answer that Officer Danforth gave, the last 
     question and the last answer only.  And you are further instructed not 
     to speculate regarding any matter that I have ruled not in evidence in 
     this case.

       Defendant now contends that the court erred in denying his mistrial
  motion, and that he  suffered prejudice as a result of Detective Danforth's
  testimony.  The court has discretion in ruling  on a mistrial motion, "but
  should not grant the motion unless the moving party establishes 
  prejudice."  State v. Jones, 160 Vt. 440, 449, 631 A.2d 840, 847 (1993). 
  We will uphold the court's  ruling "unless the court's discretion was
  either totally withheld or exercised on grounds clearly  untenable or
  unreasonable."  State v. Roberts, 154 Vt. 59, 73, 574 A.2d 1248, 1255
  (1990). 

       In determining whether a defendant has suffered prejudice, we examine
  the totality of the  circumstances, considering the testimony within the
  context of the entire proceedings.  See State v.  Covell, 142 Vt. 197, 199,
  453 A.2d 1118, 1119 (1982).  Here, the State presented testimonial and 
  physical evidence that overwhelmingly established that defendant was the
  assailant.  Indeed, as  defendant states on appeal, "the defense did not
  contest the attack or its brutality."  Furthermore, as  the trial court
  noted in a bench conference with defense counsel, the counsel's
  cross-examination  questions "elicited a response that you have to, in
  part, be responsible for . . . ."  Finally, the court's  "immediate and
  unequivocal" curative instruction was sufficient to cure any potential
  prejudice.   State v. LaBounty, 168 Vt. 129, 140, 716 A.2d 1, 8 (1998). 
  Thus, any possible prejudice visited  upon defendant was minimal.  The
  court was in the best position to evaluate the prejudicial effect 

 

  of a response induced by defendant's cross-examination, and it committed no
  error in denying  defendant's mistrial motion.  See Jones, 160 Vt. at 449,
  631 A.2d  at 847.  Moreover, defense  counsel expressly declined to object
  after the court read the instruction; thus, defendant "has failed  to
  preserve the issue he now raises for appellate review . . . ."  State v.
  Calloway, 157 Vt. 217, 219,  596 A.2d 368, 370 (1991).  Our review reveals
  no plain error in the court's action here.  See id.

       Affirmed.
 
	                               FOR THE COURT:



	                               _______________________________________
	                               Chief Justice


------------------------------------------------------------------------------
                                    Notes


FN1.  Further strengthening this conclusion is the fact that, prior to
  offering the private consultation, Detective Danforth  advised both Mr.
  Mears and defendant of all Miranda warnings and ascertained from them that
  they understood their rights,  leaving no doubt that defendant's father was
  "informed and . . . aware of the rights guaranteed to the juvenile." 
  E.T.C., 141 Vt.  at 379, 449 A.2d  at 940.

FN2.  Defendant's brief selectively quotes from the prosecutor's closing
  arguments to support his argument that the State  heavily stressed
  Detective Danforth's testimony to establish that defendant hated Ms.
  Campbell.  While it is true that the  prosecutor discussed defendant's
  statements from the interview with Detective Danforth, this was only part
  of the prosecutor's  overall argument that recounted all of the evidence -
  including Ms. Campbell's testimony that defendant told her he hated her - 
  which showed that defendant hated the victim and thus had a motive for the
  attack.

FN3.  Defendant had been questioned by Randolph police months earlier for
  his possible involvement in minor violations.  He  also refused to allow
  police officers to search the Mears home when they were investigating the
  crime on the morning of the  attack.  Defendant expressly asked whether the
  officers had a search warrant.